Team Tenenbaum to fight on for those “RIAA has screwed over”

Ars Technica talks to the Joel Tenenbaum defense team about their plans to …

Harvard Law professor Charles Nesson can only shake his head over the outcome of the Joel Tenenbaum trial, a case in which his young client was hit with a $675,000 damage award for uploading and downloading 30 songs. "How can a jury of common sense people be brought to a conclusion that is clearly divorced from its common sense base?" he wants to know.

"The law here is off base," he added, the verdict functioning as a reductio ad absurdum that highlights the problem with applying statutory damages to noncommercial copyright infringers.

The music industry says it's a "fact" that 25-year old Boston University grad student Joel Tenenbaum is a "hard-core, habitual, and unrepentant P2P abuser who has caused harm to the music community." To Nesson, though, Tenenbaum is a great kid fighting for "a lot of people the RIAA has screwed over."

Nesson intends to help Tenenbaum fight on; he tells Ars that he still wants to file a class-action lawsuit against the major labels and he will continue to litigate the Tenenbaum appeal. "This is round one," he says. "We now have the question well defined."

A question of fairness

That question is one of "fairness and justice," words that Nesson uses with obvious conviction. Now that we have three such verdicts (two for Jammie Thomas-Rasset and one for Joel Tenenbaum), it's clear that the verdicts are "produced by the law"—but the end result appears totally disproportionate to the harm caused.

Nesson plans to push the issue of fairness in post-trial motions about the unconstitutionality of such damages. If Judge Nancy Gertner agrees that some amount—any amount—would be too high to pass constitutional muster (such as the maximum $150,000 per song in damages), then "the thread can be pulled and pulled." Once the courts go down that path, "it creates a shakiness in the structure" of the law.

"As soon as you confront such issues," says Nesson, "you see that this statute just doesn't fit" Tenenbaum's noncommercial infringement.

Not everyone is buying what Nesson is selling. The Register's Andrew Orlowski tore into the professor this week, saying that:

Nesson has achieved something I thought was completely impossible in 2009, and that's to allow the US recording industry's lobby group to paint itself in a sympathetic light... The Boston case allowed the four major labels to justify an enforcement policy against opponents who appeared compulsively dishonest, irrational, paranoid, and with an abnormal sense of entitlement.

Nesson failed in his avowed mission "to put the record industry on trial. He failed to show why disproportionate statutory damages are harmful, which could have had a lasting constitutional effect. He failed to paint the defendant as sympathetic, or "one of us." He failed to demonstrate why copyright holders make lousy cops...

Now I've no doubt Nesson is sincere in his beliefs that he's doing everyone a favour, but then again, there's a bloke on my bus who thinks he's Napoleon.

And that's just about the trial; the events leading up to it were even stranger. We covered many of them, but the complete list of questionable decisions can't be summed up any better than it was by Ben Sheffner, a copyright attorney who covered the Tenenbaum trial for Ars.

Nesson is "notoriously eccentric," admits Debbie Rosenabaum, one of the Harvard Law students who served longest on the Tenenbaum case. "But we love him for that."

Calling Nesson one of her best law school professors, Rosenbaum tells Ars that Nesson "maintains the naive belief that the law should truly be just" and that he has a strong sense of how law "should be."

A common complaint is that this sounds more like an approach better suited for the legislature than the judiciary, and Rosenbaum concedes the fairness of the point. But "a lot of people say that something out of the norm is crazy until it becomes mainstream," she says, and points to a host of Supreme Court decisions that essentially changed the law in major ways, such as rulings on segregation and abortion.

"The law has changed because the social norms have made it obvious that what was the law is no longer good law," she says.

And Nesson is convinced that his quest for "fairness" is in fact deeply rooted in the law—it is not merely a request to ignore or overturn the statute, but to reinterpret it. "You cannot sensibly read this statute to apply these statutory damages against noncommercial users," he says, pointing to the legislative history behind 1999's Digital Theft Deterrence and Copyright Damages Improvement Act.

The heretic

Nesson's arguments so far haven't found much success in court. One famous example was the appellate court brief he submitted which cited no case law and referenced only a Bible verse about Solomon. It's an example that Rosenbaum brings up when we talk about the case, since it appears to reflect so badly on the Harvard Law students doing much of the work. Law students at one of the top schools in the country thought this was an appropriate appellate brief to file? Did they not even know how to cite precedent?

Rosenbaum stresses just how much work the students did on these briefs, and she says the initial drafts of this one in particular were stuffed full of case law and traditional legal reasoning. But Nesson had the final say before submission and apparently preferred the wisdom of I Kings to the past wisdom of the American court system.

"I think it's fun to test the limits of legal norms," says Rosenbaum, though she admits to being "absolutely petrified" about being disbarred over some of Nesson's actions.

But orthodoxy is not Nesson's way. Nesson "at his very core is not a trial attorney," says Rosenbaum. He's a teacher, a thinker, a philosopher who thinks about "big, theoretical questions."

"There are things we could have done differently along the way," she adds, but is quick to provide a firm "yes" when asked if Tenenbaum had good representation.

Not backing down

Nesson's hope for arguing the "fairness" of Tenenbaum's actions hit a huge speed bump just before the trial, when Judge Gertner ruled that downloading and sharing full songs over P2P networks was not "fair use" under US copyright law. At that point, given the evidence against him, it was clear that Tenenbaum would be on the hook for some serious cash—minimum statutory damages are $750 per song, which means that Tenenbaum faced a damage award of more than $20,000.

Given that the labels had long been trying to settle with Tenenbaum for less than this amount, were there any discussions about just throwing in the towel and taking a settlement?

The defense team says no, this was never a consideration. It's about the principle of the thing; according to Nesson, Tenenbaum's "generation is not to blame for what happened" to the record labels, so why should he settle, admit guilt, and pay anything at all?

We checked in with the RIAA, which says that "of course" it is still open to a settlement. "We're always interesting in settling these cases," said spokeswoman Cara Duckworth.

But Team Tenenbaum intends to fight on. A few Harvard Law students who haven't yet graduated will help out with the case in the fall, but the original team has all moved on now. Looking back over her experience on the team, Rosenbaum says that she "wouldn't trade it for anything in the world, and I don't think Joel would either."

$675,000 is a lot to pay for the privilege of being sued in federal court, but Tenenbaum has a plan for dealing with the damages. If Nesson's work fails to get him off the hook, "I declare bankruptcy."